Delhi High Court
Nathi Lal Chaurasia (Since Deceased ... vs Sushila Devi Jain And Another on 24 February, 2025
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24.02.2025
+ RC.REV. 19/2022 & CM Appls.7977-78/2022, 74317-18/2024
NATHI LAL CHAURASIA (SINCE DECEASED THROUGH LR)
.....Petitioner
Through: Mr. Praveen Suri and Mr. Akhil
Kumar, Advs.
versus
SUSHILA DEVI JAIN AND ANOTHER .....Respondents
Through: Mr. Kartickay Mathur and Mr.
Shankar, Advs. for R-1.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
1. This matter has been listed before the Court on multiple occasions
including on 04.03.2024, 16.08.2024, 25.10.2024, 18.11.2024, 02.12.2024,
11.12.2024, 18.12.2024 and 18.02.2025 and learned Counsel for the
Petitioner has, on these dates, made the same submission.
2. This Court has taken a view upon the judgment passed by this Court
in RC.REV. 419/2018 captioned Ashok Gupta v. Deepak Rao1, which has
relied upon the Judgments of the Supreme Court in NC Daga v. Inder
Mohan Singh Rana2 and Vinod Kumar Verma v. Manmohan Verma3. This
view has also been recorded in the order dated 25.10.2024 as stated above.
3. Learned Counsel for the Petitioner seeks to rely upon the judgment
dated 22.04.2024 passed by a Coordinate Bench of this Court in Bata India
2024 SCC OnLine Del 7148
(2003) 1 SCC 453
Civil Appeal Nos. 5220-5221 of 2008
Limited v. Sarla Sharma Through LRs and Others4 to submit that power to
condone delay in filing the leave to defend/ Contest application is available
with this Court.
4. Learned Counsel for the Respondent No.1, on the other hand, also
seeks to rely upon a judgment passed by this Court in Ashok Gupta case as
well as a judgment dated 10.01.2019 passed by a Coordinate Bench of this
Court in Neelam Sharma v. Ekant Rekhan to submit that the judgment in
the Neelam Sharma case was challenged by the tenant therein before the
Supreme Court and the Supreme Court by its order dated 08.05.2019 in
Petition(s) for Special Leave to Appeal(C) No. 10967/2019 captioned as
Neelam Sharma v. Ekant Rekhan has after referring to the fact that the
possession of the shop in question was admittedly taken over by the landlord
on 30.08.2018 through the execution proceedings, has held that the Revision
Petition had become infructuous, thus, the Supreme Court was not inclined
to entertain the Special Leave Petition. The relevant extract of the order
dated 08.05.2019 passed by the Supreme Court is set out below:
"We have heard learned Counsel appearing on behalf of the Petitioner.
In Paragraph 15 of the impugned judgment, the High Court has observed
that the possession of the shop in question, admittedly is taken over by the
Respondent on 30.08.2018 in execution proceedings. Therefore, the
revision before the High Court has become infructuous. In such view of
the matter, we are not inclined to entertain this special leave petition.
The special leave petition is, accordingly, dismissed.
Pending application(s), if any, shall also stand disposed of."
[Emphasis supplied]
2021 SCC OnLine Del 2538
5. The attention of the learned Counsel for the Petitioner is drawn to the
judgment of the Division Bench of this Court in the case of Directorate of
Education & Ors. vs. Mohd. Shamim & Ors.5 wherein it has been held that
the learned Trial Court has no power to condone the delay in case of a Leave
to Defend/Contest Application being filed belatedly, however, the power
does lie with this Court, provided that a twin test threshold is crossed.
Firstly, the tenant is required to show that he was prevented by reasons
beyond his control from applying for Leave to Defend within the prescribed
time. Secondly, the tenant is to make out a substantial defence warranting
consideration of the Application for Leave to Defend. The relevant extract
of the order passed by the Division Bench in the Directorate of Education
case is set out below:
"25. We, therefore, hold that merely because the Controller has passed
an order of eviction in a proceeding governed under Section 25B, on
failure of the tenant to, within the prescribed time, apply for leave to
defend and merely because the Controller vide Prithpal Singh supra has
been held to be not empowered to recall the said order, would not
prevent this Court from, in exercise of powers under proviso to Section
25B(8), considering once a case for the landlord to be not entitled to an
order of eviction to be deemed admission following non-filing of leave
to defend within the prescribed time, the said order cannot be said to
have been made according to law and would qualify as being contrary
to law and liable to be set aside.
26. Having held so, we answer the question no.(A) framed in the referral
order in the affirmative and with the condition that this Court would be
empowered to set aside the order of eviction only if the tenant passes
the dual test of prevented by reasons beyond control from applying for
leave to defend within the prescribed time (as distinct from every
default) and if makes out a substantial case for consideration of the
application for leave to defend. We, however, in deference to Prithipal
Singh supra choose/opt to not answer the question (B) framed in the
referral order.
2019 SCC OnLine Del 11490
27. We answer the reference accordingly."
[Emphasis Supplied]
5.1. Thus, the Petitioner is required to satisfy the twin tests as are set out
above, to be entitled to relief from this Court.
6. The record reflects that repeated efforts were made by the
Respondents to serve summons personally to the Petitioner but either the
premises were found locked or the same was refused. Subsequently, the
summons were served through affixation on 31.07.2009 in pursuance of an
order dated 20.04.2009 passed by the learned Trial Court. Thereafter, since
the Petitioner failed to file leave to defend within the stipulated time period
of 15 days from the date of service of summons, the learned Trial Court
passed by the Order dated 03.11.2009 for eviction of the Petitioner/tenant.
The relevant extract of the Impugned Order is reproduced below:
"...I heard the submissions and perused the record which shows that both
the respondents were served through affixation on 31.07.2009 and they have
not filed the requisite application for seeking leave to contest the present
eviction petition U/s 25 B of the DRC Act within the stipulated period of 15
days. As per settled proposition of law, time for filing the leave to defend
cannot be extended beyond the statutory period of 15 days. In these
circumstances, the averments made in the petition are deemed to be
admitted by the respondent as per the provision of DRC Act....."
[Emphasis Supplied]
7. The Petitioner/tenant, thereafter, filed a review petition under Section
25(9) of the Delhi Rent Control Act, 1958 [hereinafter referred to as "DRC
Act"]. By an order dated 10.12.2021 in the Review Order [hereinafter
referred to as 'Review Order'], the review petition was dismissed on the
ground that there is no error apparent on the face of the record in the order
dated 03.11.2009. Relying on the testimonies of the process servers, learned
Trial Court has held in the Review Order that repeated efforts were made to
serve the summons personally upon the Petitioner/tenant but either the
premise was found locked or the summons were refused and that the
summons were then served through affixation. The relevant extract of the
Review Order is reproduced below:
" 30. Thus, perusal of the above stated testimonies and record of the
case shows that repeated efforts were made to serve the summons
personally upon the applicants/tenants but either the premise was found
locked or same was refused to be accepted, finally the summons were
served through affixation. Needless to say that endeavours were made not
to receive summons of the Court....
xxx xxx xxx xxx
32. Thus, in view of the above stated reasons and decision of Hon'ble
High court of Delhi, I am satisfied that there is no error apparent on the
face of record in order dated 03.11.2009. So, the application of
respondents/tenants under Section 25-B(9) of Delhi Rent Control Act for
review of order dated 03.112009 is dismissed."
[Emphasis Supplied]
8. As mentioned above, the service was affected on the Petitioner on
31.07.2009 by way of affixation however, the Petitioner/tenant has failed to
file leave to defend within the stipulated period of 15 days from the date of
service. The Petitioner/tenant has failed to show that Petitioner was
prevented by reasons beyond his control from applying for Leave to Defend
within the prescribed time. Since, the twin test of the Directorate of
Education case has not been satisfied, the Court is unable to condone the
delay in filing the Application for leave to defend/contest.
9. There is another aspect of this case which is of relevance. It is the
admitted case of both the parties that the possession of the subject premises
was restored to the Respondent/landlord. The issue of whether a Revision
Petition is maintainable when the tenanted subject premises has been legally
restored to the Respondent/landlord, either during or before the filing of the
Revision Petition, has been addressed by the Supreme Court as well as by
Coordinate Benches of this Court.
10. The Court in Ashok Gupta case has held that once an Eviction Order
has gained fruition and has been implemented through an Execution
proceeding in accordance with law, the Revision Petition becomes
infructuous. The Court has relying on the judgment in the Abid-Ul-Islam v.
Inder Sain Dua6 held that the jurisdiction of this Court in a Rent Revision
matter is limited and circumspect to examine if there is an error apparent on
the face of the record or absence of any adjudication by the learned Trial
Court, and it is only then should the High Court interfere. The relevant
extract of the Ashok Gupta case is set out below:
"10. The issue of whether a Revision Petition is maintainable when the
tenanted premises have been legally restored to the Respondents/landlord,
either during or before the filing of the Revision Petition, has been
addressed by the Supreme Court as well as by Coordinate Benches of this
Court.
11. The Supreme Court in NC Daga v. Inder Mohan Singh Rana, dealt
with a similar situation while dismissing a challenge by a tenant to a
judgment passed by this Court upholding an order declining leave to
defend passed by the learned Trial Court. The facts in the case were that
pursuant to order passed by the learned Trial Court, possession had been
taken pursuant to an order passed by the Executing Court. The Supreme
Court dealt with the similar arguments raised on behalf of the
Respondents/landlord that the Petition has become infructuous
pursuant to the possession having been taken.
12. After briefly examining the contention of the parties, the Supreme Court
held that in view of the admitted position of possession being taken in
execution proceedings, it was not necessary to go into the further details
since such a decision would be a purely academic question. The Supreme
Court held as follows:
"6. In view of the admitted position that pursuant to the order
(2022) 6 SCC 30
passed by the Rent Controller, possession has been taken on
execution of the order permitting eviction, and absence of specific
stand regarding implied consent it is, however, not necessary to go
into the finer details and to examine the rival stand in the background
of legal position as it would amount to rendering decision on a purely
academic question. The appeal is, therefore, dismissed, without any
order as to costs."
[Emphasis supplied]
13. A similar view was taken by the Supreme Court in Vinod Kumar
Verma v. Manmohan Verma where on an averment by the
Respondent/landlord that possession of the premises has already been taken
over, the Supreme Court held that nothing further survives in the Appeal
and disposed the Appeals filed as being infructuous. The order being brief is
extracted below:
"Leave granted.
At the time of hearing of these appeals, the learned counsel appearing
on behalf of the landlord-respondent submits, on instructions, that the
possession of the premises in question has already been taken over by
the landlord-respondent. That being the position, these appeals have
now become infructuous, which have been filed against the final
judgment and order dt.25.02.2008 and 28.03.2008 passed by the High
Court of Delhi at New Delhi in RCR No. 49 of 2007 and C.M. No.
119 of 2008 (Review) in RCR No. 49 of 2007, by which the Revision
Petition filed by the tenant/appellant was dismissed and order of
eviction was affirmed. Since the possession has already been taken
over by the landlord-respondent, in our view nothing survives in
these appeals and accordingly, the appeals are disposed of as
infructuous.
Interim order, if any, stands vacated.
There will be no order as to costs."
[Emphasis Supplied]
14. Various Coordinate Benches of this Court have also similarly held that
the tenant's Petition have become infructuous in view of possession being
taken. Reliance is placed on Neelam Sharma v. Ekant Rekhan4 and Bhawani
Shankar v. Nand Lal.
14.1 In Om Prakash Ashok Kumar & Sons v. Ajay Khurana6 while relying
on the NC Daga case and several other cases, a Coordinate Bench held as
follows:
"10. This Court in various decisions has followed the decision given
by the Supreme Court in N.C. Daga v. Inder Mohan Singh Rana. The
Coordinate Bench of this Court in Poonam Bangia v. Harbhagwan
Dass Chandiramani in RC. REV. no. 16/2021 vide order dated
22.07.2021 after following the law laid down in N.C. Daga v. Inder
Mohan Singh Rana, dismissed the revision petition after observing
that the landlord has received the possession of the tenanted
premises through execution proceedings. Another Coordinate
Bench of this Court in Mange Ram v. Rajesh Narain Goel, in RC.
REV. no. 147/2021, decided on 19.03.2024 after following N.C.
Daga v. Inder Mohan Singh Rana and Vinod Kumar
Verma v. Manmohan Verma, in Civil Appeal nos. 5220-5221/2008
passed by the Supreme Court and in Poonam Bangia v. Harbhagwan
Dass Chandiramani in RC. REV no. 16/2021 passed by this Court as
mentioned hereinabove also dismissed the revision petition as
became infructuous due to the reason that the possession of the
subject premises has been restored to the
respondent/landlord. The same view was also taken by another Co-
ordinate Bench of this Court in Ram Avtar v. Anuradha Shukla in RC.
Rev. Bearing no. 104/2021 vide order dated 03.11.2023, the revision
petition was ordered to be dismissed as the possession of the tenanted
premises has already been taken by the respondent/landlord in
accordance with law.
xxx
12. In the present case as reflected from the order dated
10.05.2024, the possession of the tenanted premises has already
been restored back to the respondent/landlord in execution of
warrant of possession in accordance with law. This Court is also of
the view that the present petition is not maintainable. Accordingly, the
present petition, along with pending applications stands dismissed
being infructuous."
Emphasis Supplied]
15. This Court in various orders including Order dated 14.12.2023 passed in
RC. REV. 335/2019 captioned Ajay Kumar v. Ranbir Singh, Order dated
06.12.2023 passed in RC. REV. 52/2023 captioned Govardhan Lal v. Smt.
Vidya Rani (Deceased) Through Lrs dated 03.11.2023 passed in RC. REV.
104/2021 captioned Ram Avtar v. Smt. Anuradha Shukla has held that when
a Revision Petition has been filed challenging an order of learned Trial
Court which has now gained fruition and has already been
implemented through execution proceedings, in such circumstances, the
Revision Petition has become infructuous. In addition, it was held that
once possession was taken over by the Respondent/landlord in
accordance with law, the Petition becomes infructuous."
[Emphasis supplied]
10.1 It was further held in the Ashok Gupta case that Section 19 of the
DRC Act gives a right to a tenant to recover possession from the landlord
albeit in terms of the provisions of such Section. The relevant extract is set
out below:
"16. The present Petition has been filed impugning the order and judgment
of the learned Trial Court which has directed vacation of the subject
premises in issue. The jurisdiction of this Court is only revisionary in
nature and limited in scope. The Supreme Court while interpreting the
intendment of the legislature in removing two stages of Appeal that were
earlier provided in the Act has held that this is a conscious omission. The
High Court is not expected to substitute and supplant its view with that of
the learned Trial Court, its only role is to satisfy itself on the process
adopted. Thus, the scope of revisionary jurisdiction of this Court has
been limited to examine if there is an error apparent on the fact of the
record or absence of any adjudication by the learned Trial Court, and it
is only then should the High Court interfere. The Supreme Court has also
cautioned from converting the power of superintendence into that of a
regular first Appeal under revisionary jurisdiction.
17. The provisions of the Act provide for a remedy of restoration of
possession to a Petitioner/tenant in one situation and, i.e., under Section
19 of the Act. In cases allowed under Section 14(1)(e) of the Act, the
recovery of possession by a tenant under Section 19(1) can be obtained
if the landlord re-let the whole or part of the premises within three years
from the date of obtaining possession from the evicted tenant. Sub-section
(2) of Section 19 of the Act further provides that where such premises
are not occupied within two months or within three years from the date of
possession, are re-let to a person without permission of the Rent Controller
within three years from the date of possession, the Rent Controller may
direct the landlord to put the tenant in possession or pay him such
compensation as is deemed fit by the Rent Controller. Section 19 is set
out below:
"19. Recovery of possession for occupation and re-entry.--(1) Where
a landlord recovers possession of any premises from the tenant in
pursuance of an order made under clause (e) of the proviso to sub-
section (1) of section 14 [or under sections 14A, 14B, I4C, 14D and
21, the landlord shall not, except with the permission of the Controller
obtained in the prescribed manner, re-let the whole or any part of the
premises within three years from the date of obtaining such
possession, and in granting such permission, the Controller may direct
the landlord to put such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any premises as aforesaid
and the premises are not occupied by the landlord or by the person for
whose benefit the premises are held, within two months of obtaining
such possession, or the premises having been so occupied are, at any
time within three years from the date of obtaining possession, re-let to
any person other than the evicted tenant without obtaining the
permission of the Controller under sub-section (1) or the possession of
such premises is transferred to another person for reasons which do
not appear to the Controller to be bona fide, the Controller may, on an
application made to him in this behalf by such evicted tenant within
such time as may be prescribed, direct the landlord to put the tenant in
possession of the premises or to pay him such compensation as the
Controller thinks fit."
17.1 The Supreme Court in Abid-Ul-Islam case has held that Section 19
of the Act gives a right of re-possession to the dispossessed tenant if
landlord recovers possession under Section 14(1)(e) of the Act and
thereafter, the landlord does not use the subject premises for the purpose
that it was intended and set out in such Eviction Petition on which basis, an
order for eviction was obtained by the landlord. The relevant extract is set
out below:
"19. Before a presumption is drawn, the landlord is duty-bound to place
prima facie material supported by the adequate averments. It is only
thereafter, the presumption gets attracted and the onus shifts on the tenant.
The object of Section 14(1)(e) vis-à-vis Section 25-B has to be seen in the
light of yet another provision contained under Section 19. Section 19 gives
a right to the dispossessed tenant for repossession if there is a non-
compliance on the part of the landlord albeit after eviction, to put the
premises to use for the intended purpose. Such a right is available only to
a tenant who stood dispossessed on the application filed by the landlord
invoking Section 14(1)(e) being allowed. Thus, Section 19 inter alia
throws more light on the legislative objective facilitating a speedy
possession. The object is also reflected in the proviso to Section 25-B(8),
denying a right of appeal.."
...
19. As stated above, the jurisdiction of this Court exercising revisionary
powers is limited and circumspect. The Petitioner/tenant did not initiate
civil proceedings for recovery of possession, instead the present
Revision Petition was filed. The Petitioner/tenant has not contended
that Section 19 of the Delhi Rent Control Act, 1958 has been violated.
Relying on the judgment of the Supreme Court in the NC Daga
case and Vinod Kumar Verma case, this Court finds that this Petition has
become infructuous and is accordingly dismissed."
[Emphasis Supplied]
11. In view of the aforegoing, this Court finds no ground to entertain this
Petition.
12. The Petition and all pending Applications are accordingly dismissed.
However, the Registry is directed to ascertain the costs in the matter and the
Petitioner shall pay the costs within a period of four weeks.
13. The parties will act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J
FEBRUARY 24, 2025/r/jn
Click here to check corrigendum, if any
